Hofstra Law Review Volume 22 | Issue 3 Article 1 1994 Pragmatism Applied: Imagining a Solution to the Problem of Court Congestion Michael L. Seigel Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Seigel, Michael L. (1994) "Pragmatism Applied: Imagining a Solution to the Problem of Court Congestion," Hofstra Law Review: Vol. 22: Iss. 3, Article 1. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol22/iss3/1 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Seigel: Pragmatism Applied: Imagining a Solution to the Problem of Court HOFSTRA JAW REVIEW Volume 22 Spring 1994 PRAGMATISM APPLIED: IMAGINING A SOLUTION TO THE PROBLEM OF COURT CONGESTION Michael L. Seigel' I. INTRODUCTION Somehow the unfortunate trend has arisen among attorneys to make almost every case a BIG CASE. There is a tendency to want to present the evidence not once, but many times over, and to adduce needlessly cumulative evidence not only on the controverted issues but also on those which are all but uncontested. Advocates tend to confuse quantity of evidence with probative quality. Nothing lulls an attorney to the passage of time like the sound of his or her own voice. Few attorneys can tell you what time it is without describing how the clock was made.' "An antitrust suit remains a piece of litigation; it is not a life's 2 work." * Associate Professor of Law, University of Florida. A.B., Princeton University, 1981; J.D., Harvard University, 1984. I would like to thank Craig R. Callen, Gary A. Rosen, Ed- ward L. Rubin, Eileen A. Scallen, Christopher Slobogin, and William R. Sneed M11,for their comments on earlier drafts of this article. I am particularly indebted to Professor Richard L. Marcus for generously sharing his considerable expertise in complex litigation and civil proce- dure with an interloper from the criminal arena. Finally, I wish to express my appreciation of the fine research assistance of Danielle R. May. 1. United States v. Reaves, 636 F. Supp. 1575, 1579 (E.D. Ky. 1986) (Bertelsman, J.). 2. SCM Corp. v. Xerox Corp., 77 F.R.D. 10, 14 (D. Conn. 1977) (Newman, J.)(quot- Published by Scholarly Commons at Hofstra Law, 1994 1 Hofstra Law Review, Vol. 22, Iss. 3 [1994], Art. 1 HOFSTRA LAW REVIEW [Vol. 22:567 The frustration of the judiciary is patent. As their per capita caseloads have risen, judges have worked frantically to keep up. They have become case managers,' shoving litigants through the system with the constant refrain: hurry up and settle this case.4 They have limited the time for trials, sometimes in mid-stream.5 They have set up fora for forms of alternative dispute resolution ("ADR"), including mediation,6 "early neutral evaluation, 7 and court-annexed arbitra- tion.8 They have even created some innovative settlement techniques, such as the Summary Jury Trial.9 Judges have done all this and more, to no avail. The most recent statistics reveal that per capita judicial caseloads are still on the rise," and the length of time be- ing SCM Corp. v. Xerox Corp., No. 77-15807, slip op. at 4 (D. Conn. Oct. 31, 1975), order denying SCM's motion to compel production of documents). 3. See Robert F. Peckham, A Judicial Response to the Cost of Litigation: Case Man- agement, Two-Stage Discovery Planning and Alternative Dispute Resolution. 37 RUTGERS L. REV. 253 (1985) (arguing in favor of judicial management of cases). 4. See id. at 267 ("The primary purpose of status and pretrial conferences is to plan and structure the pretrial and trial stages of litigation . Case management simply brings cases to settlement or to trial sooner than if their progress were left entirely to the impetus of the parties."); see also E. Donald Elliott, Managerial Judging and the Evolution of Pro- cedure, 53 U. CHI. L. REV. 306, 322-24 (1986) (contending that the goal of managerial judg- ing quickly evolved from making litigation more efficient to settling cases). See generally Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982) [hereinafter Resnik, Mana- gerial Judges]. Judge Peckham takes issue with Professor Resnik's view (adopted in the text) that judicial management of cases is primarily directed at promoting settlement. Peckham, supra note 3, at 266-67. 5. See, e.g., SCM Corp., 77 F.R.D. at 11-12, 15 (ordering plaintiff, fourteen weeks after the start of trial, to complete its case in six months). 6. See Peckham, supra note 3, at 274-77 (discussing the process of mediation). 7. See Wayne D. Brazil et al., Early Neutral Evaluation: An Experimental Effort to Expedite Dispute Resolution, 69 JUDIcATUR 279 (1986) (describing the Northern District of California's "early neutral evaluation" program); Irving R. Kaufman, Reform for a System in Crisis: Alternative Dispute Resolution in the Federal Courts, 59 FORDHAM L. REv. 1, 12-13 (1990) (discussing early neutral evaluation). 8. See Kaufman, supra note 7, at 17-22 (describing court-annexed arbitration); Diane P. Wood, Court-Annexed Arbitration: The Wrong Cure, 1990 U. CHI. LEGAL F. 421, 432-41 (describing the increasing use of arbitration in federal courts). 9. The Summary Jury Trial was designed by Judge Thomas Lambros. See Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 463 (1984). 10. In 1980, the number of civil cases pending in the federal courts per judgeship was 361. See 1990 Dig. ADMIN. OFF. U.S. Cms. ANN. REP. 7 (Table 5) [hereinafter 1990 RE- PORT]. The same figure for 1990 was 421. Id. The number of cases filed in federal court, however, has declined steadily since 1985. See id. (showing decline in commenced cases from 273,670 in 1985 to 217,879 in 1990). This decline has been the result of three factors: re- ductions in the number of cases filed by the federal government to recover benefit overpayments and defaulted student loans; reductions in the number of cases filed against the http://scholarlycommons.law.hofstra.edu/hlr/vol22/iss3/1 2 Seigel: Pragmatism Applied: Imagining a Solution to the Problem of Court 19941 PRAGMATISM APPLIED tween the filing of a civil lawsuit and its disposition is no shorter today than it was ten years ago." It is therefore not surprising that judges have, from time to time, simply lost their cool." Legal scholars have long taken notice of the perceived problem of court congestion; it has been an unending source of material for scholarly inquiry. 3 The substance of scholars' reactions fall into sev- federal government for benefits; and, in 1990, a reduction in the number of diversity cases filed as a result of the increase in the jurisdictional amount from $10,000 to $50,000. See id at 6-9. 11. The median disposition time for civil cases that went to trial in federal court in 1980 was 20 months. See 1980 DI. ADMIN. OFF. U.S. CTS. ANN. REP. 393 (Table C-5) [hereinafter 1980 REPORT]. In 1990, the median disposition time was 19 months. See 1990 REPORT, supra note 10, at 157 (Table C-5). Professor Priest has come to a similar conclusion regarding court congestion and the general failure of reform measures to cure it. George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U. L. REV. 527, 527 (1989) [hereinafter Priest, Private Litigants]. 12. The two remarks quoted at the outset of this Article are examples of statements made by judges who were clearly exasperated by the length of the litigation they were super- intending. See supra text accompanying notes 1-2. In another case, a federal district court judge ordered a dismissal because, after he warned the parties that they needed to secure the presence of enough witnesses to keep the case flowing, the plaintiff ran out of witnesses at 3:30 p.m. on the first day of trial. See Beary v. City of Rye, 601 F.2d 62, 64-65 (2d Cir. 1979) (describing events in the trial court). In the course of reversing the district court's order, the Second Circuit stated: "This appeal is an example of a trial court's permitting its zeal for clearing its calendar to overcome the right of a party to a full and fair trial on the merits." l at 63. 13. See HANS ZEISEL Er AL., DELAY IN THE CoURT (1959); Albert W. Alschuler, Medi- ation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases, 99 HIv. L. REv. 1808 (1986); Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REv. 4 (1983) [hereinafter Galanter, Landscape]; Kaufnan, supra note 7; Randy M. Mastro, The Myth of the Litigation Explosion, 60 FORDHAM L. REv. 199 (1991) (reviewing WALTER K. OLSON, THE LITIGATION EXPLO- SION: WHAT HAPPENED WHEN AMERiCA UNLEASHED THE LAWSUIT (1991)); George L. Priest, The Role of the Civil Jury in a System of Private Litigation, 1990 U. CHI. LEGAL F. 161 [hereinafter Priest, Role of the Jury]; Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 494 (1986) [hereinafter Resnik, Adjudicatory Decline]; Resnik, Managerial Judges, supra note 4; Austin Sarat, The Litigation Explosion, Access to Justice, and Court Reform: Examining the Critical Assumptions, 37 RUTGERS L.